go NewEgg: 'Newegg went against a company that claimed its patent covered SSL and RC4 encryption, a common encryption system used by many retailers and websites. This particular patent troll has gone against over 100 other companies, and brought in $45 million in settlements before going after Newegg. We won.'

Now a series of decisions from lower courts is starting to bring the ruling's practical consequences into focus. And the results have been ugly for fans of software patents. By my count there have been 11 court rulings on the patentability of software since the Supreme Court's decision — including six that were decided this month. Every single one of them has led to the patent being invalidated. This doesn't necessarily mean that all software patents are in danger — these are mostly patents that are particularly vulnerable to challenge under the new Alice precedent. But it does mean that the pendulum of patent law is now clearly swinging in an anti-patent direction. Every time a patent gets invalidated, it strengthens the bargaining position of every defendant facing a lawsuit from a patent troll.

"We felt really good the last couple of days," said the tech lobbyist. "It was a good deal—one we could live with. Then the trial lawyers and pharma went to Senator Reid late this morning and said that's it. Enough with the children playing in the playground—go kill it."

In Kaspersky's view, patent trolls are no better than the extortionists who cropped up in Russia after the fall of the Soviet Union, when crime ran rampant. Kaspersky saw more and more people becoming victims of various extortion schemes. US patent trolls seemed very similar. "Kaspersky's view was that paying patent trolls was like paying a protection racket," said Kniser. He wasn't going to do it.

Ding dong, the troll is dead! Ars Technica with a great description of the Eolas web patent fiasco, and the UC system's sorry role. I blame Bayh-Dole for creating this insane mindset where places of learning are forced to "monetize" their research.

Under Doyle's conception of his own invention, practically any modern website owed him royalties. Playing a video online or rotating an image on a shopping website were "interactive" features that infringed his patents. And unlike many "patent trolls" who simply settle for settlements just under the cost of litigation, Doyle's company had the chops, the lawyers, and the early filing date needed to extract tens of millions of dollars from the accused companies. [...]

The role of the University of California is one of the most perplexing twists in the Eolas saga. The university kept a low profile during the lead-up to trial; but once in Texas, Eolas lawyers constantly reminded the jury they were asserting "these University of California patents." A lawyer from UC's patent-licensing division described support for Eolas at trial by simply saying that the university "stands by its licensees." (Eolas was technically an exclusive licensee of the UC-owned patent, which also gives it the right to sue.)

At the same time, the University of California, and the Berkeley campus in particular, was a key institution in creating early web technology. While UC lawyers cooperated with the plaintiffs, two UC Berkeley-trained computer scientists were key witnesses in the effort to demolish the Eolas patents.

Pei-Yuan Wei created the pioneering Viola browser, a key piece of prior art, while he was a student at UC-Berkeley in the early 1990s. Scott Silvey, another UC-Berkeley student at that time, testified about a program he made called VPlot, which allowed users to rotate an image of an airplane using Wei's browser. VPlot and Viola were demonstrated to Sun Microsystems in May 1993, months before Doyle claimed to have conceived of his invention.

Great investigative journalism, interviewing the legal team behind the current big patent-troll shakedown; that on scanning documents with a button press, using a scanner attached to a network. They express whole-hearted belief in the legality of their actions, unsurprisingly -- they're exactly what you think they'd be like (via Nelson)

Don Marti makes some suggestions regarding the America Invents Act: record your work's timeline; use the new Post-Grant Challenging process; and use the new "prior user" defence, which lets you rely on your own non-public uses.

many of the best practices for tracking new versions of software and other digital assets can also help protect you against patent trolls. It’s a good time to talk to your lawyer about a defensive strategy, and to connect that strategy to your version control and deployment systems to make sure you’re collecting and retaining all of the information that could help you under this new law.

Very cool account of Newegg's battle against a ludicrous patent-troll shakedown. Great quote from their Chief Legal Officer, Lee Cheng:

Patent trolling is based upon deficiencies in a critical, but underdeveloped, area of the law. The faster we drive these cases to verdict, and through appeal, and also get legislative reform on track, the faster our economy will be competitive in this critical area. We're competing with other economies that are not burdened with this type of litigation. China doesn't have this, South Korea doesn't have this, Europe doesn't have this. [...]

It's actually surprising how quickly people forget what Lemelson did. [referring to Jerome Lemelson, an infamous patent troll who used so-called "submarine patents" to make billions in licensing fees.] This activity is very similar. Trolls right now "submarine" as well. They use timing, like he used timing. Then they pop up and say "Hello, surprise! Give us your money or we will shut you down!" Screw them. Seriously, screw them. You can quote me on that.

We are truly living in the future -- a dystopian future, but one nonetheless. A patent troll manages to obtain "gobbledigook" patents on using a scanner to scan to PDF, then attempts to shake down a bunch of small companies before eventually running into resistance, at which point it "forks" into a bunch of algorithmically-named shell companies, spammer-style, sending the same demands. Those demands in turn contain this beauty of Stockholm-syndrome-inducing prose:

'You should know also that we have had a positive response from the business community to our licensing program. As you can imagine, most businesses, upon being informed that they are infringing someone’s patent rights, are interested in operating lawfully and taking a license promptly. Many companies have responded to this licensing program in such a manner. Their doing so has allowed us to determine that a fair price for a license negotiated in good faith and without the need for court action is a payment of $900 per employee. We trust that your organization will agree to conform your behavior to respect our patent rights by negotiating a license rather than continuing to accept the benefits of our patented technology without a license. Assuming this is the case, we are prepared to make this pricing available to you.'

And here's an interesting bottom line:

The best strategy for target companies? It may be to ignore the letters, at least for now. “Ignorance, surprisingly, works,” noted Prof. Chien in an e-mail exchange with Ars.

Her study of startups targeted by patent trolls found that when confronted with a patent demand, 22 percent ignored it entirely. Compare that with the 35 percent that decided to fight back and 18 percent that folded. Ignoring the demand was the cheapest option ($3,000 on average) versus fighting in court, which was the most expensive ($870,000 on average).

Another tactic that clearly has an effect: speaking out, even when done anonymously. It hardly seems a coincidence that the Project Paperless patents were handed off to a web of generic-sounding LLCs, with demand letters signed only by “The Licensing Team,” shortly after the “Stop Project Paperless” website went up. It suggests those behind such low-level licensing campaigns aren’t proud of their behavior. And rightly so.

I am mostly fine with the concept of “selling stuff you made”, so I’m also against copyright infringement. I don’t think it’s quite as bad as theft, and I’m not sure it’s good for society that some professions can get paid over and over long after they did the work (say, in the case of a game developer), whereas others need to perform the job over and over to get paid (say, in the case of a hairdresser or a lawyer). But yeah, “selling stuff you made” is good. But there is no way in hell you can convince me that it’s beneficial for society to not share ideas. Ideas are free. They improve on old things, make them better, and this results in all of society being better. Sharing ideas is how we improve. A common argument for patents is that inventors won’t invent unless they can protect their ideas. The problem with this argument is that patents apply even if the infringer came up with the idea independently. If the idea is that easy to think of, why do we need to reward the person who happened to be first?

Of course, in reality it's even worse, since you don't actually have to be first to invent -- just first to file without sufficient people noticing, and people are actively dissuaded from noticing (since it makes their lives riskier if they know about the existence of patents)...

“While we appreciate your offer to shut down the website to stop future infringement, we notice that your website is still operation. And without further information from you, our only means to assess the potential damages is the observation that your website had 22,256 unique visitors in July 2010. Each visit represents a potential lost sale of our client’s patented invention at $149 per sale. This damage calculation exceeds $3.2 million per month in lost revenue.”